BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The relationship between a Department of Corrections employee and a former inmate, which was the subject of a later investigation by the department and resulted in the resignation of the employee, was the focus of items on 20/20, broadcast by TV3 on 11 October and 15 November 1998. It was also the subject of a bulletin opener and a news item on 3 News on 10 November 1998.

Mr Wallace, father of the employee, complained to the Broadcasting Standards Authority under s.8(1)(c) that the identification of his son in the commentary, and the footage accompanying it, represented harassment and a gross invasion of his son’s privacy. He also complained to TV3 Network Services Ltd that the items were unbalanced in not identifying the woman, and in continuously naming and identifying his son, and were unfair and inaccurate in failing to allow his son to respond reasonably to the allegations made in the commentary.

TV3 responded that the footage was taken in a public place, the allegations against the employee were serious, and the material broadcast was of legitimate public interest. It declined to uphold any breaches of privacy. In addition, TV3 wrote, the commentary was factually accurate, and the employee was given ample opportunity to put his views. It upheld the complaint that the description of the relationship in the bulletin opener on 10 November was factually ambiguous, but otherwise declined to find the items were unbalanced or unfair.

Dissatisfied with TV3’s responses, Mr Wallace referred his complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the aspect of the standards complaints that parts of some of the broadcasts were unfair. It declines to uphold any other aspects of the standards complaints and declines to uphold the privacy complaints.

Decision

The members of the Authority have viewed the tapes of the items complained about, and have read the correspondence which is listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

The First Complaints

An item in the letters segment of 20/20, broadcast by TV3 on 11 October 1998, referred to the relationship between a named employee of the Department of Corrections and a former inmate. The relationship had been examined in an earlier 20/20 programme. The item reported the resignation of the employee, that the "affair" with the former inmate had been contrary to departmental policy, and that an internal investigation of the relationship was underway. The commentary was accompanied by footage depicting the named employee walking in various public areas while being pursued by the camera, and being asked for comment.

Mr Wallace, the father of the employee, complained to TV3 that the programme and the footage broadcast on 11 October were unbalanced. He said that the woman whose accusations had been at the core of the earlier programme, and which were repeated in the item, had not been identified, but had been given a pseudonym, and her face and body were hidden in the footage. His son had, by contrast, been continuously identified and named in the item, he wrote, and further, the camera crew had harassed and grossly invaded his privacy in public places. Further, he maintained the item also made "false allegations of passing on confidential information in return for sexual favours", and the broadcaster had failed to allow an opportunity for his son to respond to further film clips.

The Second Complaints

A news bulletin opener, and a subsequent news item, in 3 News at 6.00pm on 10 November 1998, referred to the relationship between the former employee and the former inmate. The opener referred to "One inappropriate jail liaison". The news item referred to the "inappropriate relationship" and gave particulars of it. The item reported the circumstances surrounding the employee’s resignation, and quoted his comments on the charges against him which had been investigated by the department. Footage of the employee from the earlier programme was shown, and he was named in the news item.

Mr Wallace complained to TV3 that the bulletin opener was incorrect, unbalanced and unfair in referring to "One inappropriate jail liaison". It suggested that his son had formed an inappropriate relationship with someone in prison, he said. He sought a correction and an apology. He also claimed that the use of the footage showed a reckless disregard for and invaded his son’s privacy.

The Third Complaints

An item in the letters segment of 20/20, broadcast on 15 November 1998, reported the release of the findings of the Corrections Department on its investigation into the allegations made against the former employee. It reported the department’s findings that, first, the employee’s relationship with the former inmate had been inappropriate. Secondly, it reported, there had been no evidence that confidential information had been passed to the former inmate during the relationship, as had been alleged by her. The item named the employee, and repeated the footage of him from the earlier programme.

Complaining to TV3 that the item again breached his son’s privacy, Mr Wallace pointed out that the footage had been obtained "in what I term a situation of harassment". He stressed that the broadcaster had been requested in writing and by telephone not to use the footage. He also complained to TV3 that the item broadcast had again hidden the face of the former inmate, when reporting her comments and involvement in the relationship, while giving his son no opportunity "of having his photograph deleted".

TV3’s Response to the First and Third Complaints

The broadcaster in its response advised that it had considered the standards aspects of the first and third complaints under standard G4 of the Television Code of Broadcasting Practice. It also advised that it had considered the privacy aspects of the complaints under Privacy Principles (iii) and (v) of the Privacy Principles enumerated by the Authority in 1996.

Standard G4 requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any programme.

The broadcaster began its consideration by noting that the material broadcast in the letters segment of the programmes on 11 October and 15 November was justified and accurate on both occasions. The departmental investigation, it observed, had found that Mr Wallace’s son did have an inappropriate relationship with the former inmate. While the programme had referred to "an affair", TV3 wrote, there was a negligible distinction between "an affair" and "an inappropriate relationship". It concluded that the statements made in the two items were factual, and its summary of the findings of the departmental investigation were "a fair and reasonable reflection of the findings".

It then considered whether Mr Wallace’s son had been treated justly and fairly. The allegations against him were serious, TV3 wrote, and there was a legitimate public interest in the matter. 20/20 therefore properly sought to put the allegations before the former employee, and to record images of him. That, it said, was done in a public place, and he:

…could have put his views to 20/20. He had the option to agree to a formal interview, thereby negating the use of the ‘doorstop’ material. As an experienced media relations advisor …[he] would have been well aware of this course of action. He instead elected to flatly deny the allegations.

TV3 declined to uphold a breach of standard G4, it said, on the basis that the material was of legitimate public interest and that the employee was given "ample opportunity" to put his views.

It then turned to consider the Privacy Principles. Those most relevant, it wrote, were Privacy Principles (iii) and (v). Those principles read:

iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual’s interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual’s interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address, and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

Declining to find a breach of Privacy Principle (iii), TV3 stressed that the approach made to Mr Wallace’s son clearly was in a public place, and that his interest in solitude or seclusion had to be measured against the seriousness of the allegations which had been made against him. It added the material broadcast did not breach Privacy Principle (v) because it was clearly of legitimate public interest. If there had been any intrusion into his privacy, it would in any case have been defensible as a matter of public interest, the broadcaster concluded.

TV3’s Response to the Second Complaints

TV3 advised that it had considered the standards aspects of the complaints under standards G1, G6 and G21 of the Television Code of Broadcasting Practice. It also advised that it had considered the privacy aspects of the complaints under Privacy Principle iii) of the Privacy Principles enumerated by the Authority.

The first two standards require broadcasters:

G1  To be truthful and accurate on points of fact.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

The third standard provides:

G21  Significant errors of fact should be corrected at the earliest opportunity.

TV3 started by examining what it called "the opening tease" of the news report. It noted that the statement "One inappropriate jail liaison" was made in reference to the findings of a departmental inquiry into relationships between some corrections staff and inmates. The broadcaster agreed that the tease, which depicted another inmate whose relationship had been under similar scrutiny, "could have given some viewers the impression that the relationship involving Mr Wallace was with someone in prison". It therefore upheld the standard G1 aspect of the complaint. However, it continued, its subsequent news bulletin, both in the introduction to the story and the story itself, made it very clear that the relationship was with a former inmate – that the relationship did not take place in prison. Therefore, it said, fairness was restored by the time viewers had watched the item itself. TV3 declined to uphold the complaint under standard G6.

Because the error was corrected in the news bulletin, when viewers’ attention would have been more focused on the story’s detail, it was "corrected at the earliest opportunity", the broadcaster wrote. That was in accordance with standard G21 and accordingly, TV3 declined to uphold the complaint under that standard.

Turning to consider the Privacy Principles, TV3 wrote that the most relevant was Privacy Principle (iii) (recorded above). Observing that the image which was complained about "was obtained from a 20/20 programme and shows Mr Wallace walking in a street – a public place", TV3 said his interest in solitude or seclusion had to be measured against the seriousness of the allegations made against him. It declined to uphold a breach of his privacy.

The Referrals to the Authority

In his referrals to the Authority, Mr Wallace contended that the broadcaster had not addressed the issues he had raised in his complaints. In addition, he wrote, the privacy issues had been glossed over. His son, he emphasised:

…was not given the opportunity to respond to the allegations in a fair way. He had a camera thrust in his face with no time to consider his response.

While the former inmate’s face had been blacked out in the footage, his son had been given no opportunity to have his features deleted, he wrote. The opening "tease" in the news bulletin was unfair, he reiterated, and "I do not accept that the later clarification was adequate. Not everyone watches the total programme".

When asked for a response, TV3 advised that it had "no further comments" on the complaints.

The Authority’s Findings – Privacy

The Authority turns first to the privacy complaints. Although there were separate privacy complaints arising from each of the two broadcasts of the 20/20 programme and from the 3 News broadcast, the Authority here deals with all three privacy complaints together. It does so because the three complaints focused on the repeated use of footage showing Mr Wallace’s son walking in a street while being followed by the camera, and the identification and questioning of his son by the reporter in the accompanying voice-over and commentary.

In his complaints, Mr Wallace said the broadcasts constituted a gross invasion of his son’s privacy by the camera crews, and by the continuous visual identification and naming of his son without his agreement or consent. TV3 considered the complaints first under Privacy Principle (iii), and stressed that the approach to Mr Wallace’s son had been made in a public place. This approach, it said, was an answer to the complaint under Principle (iii). Secondly, it considered the complaints under Privacy Principle (v). TV3 argued the programme was of legitimate public interest, and public interest, it said, was an answer under Principle (v) to the complaints that the privacy of the complainant’s son had been violated by his naming and identification in the broadcasts. Thirdly, the broadcaster concluded by noting that "public interest" was a defence to any intrusion into an individual’s privacy.

The Authority considers that the broadcaster’s alleged "interference" is answered by the concluding words to Privacy Principle (iii), as TV3 noted. The principle concludes that even where an intentional interference or intrusion is offensive to "the ordinary person", an individual’s interest in seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place. Here the filming occurred in a public place. The Authority, however, notes that the means by which the footage was obtained may still threaten other programme standards, and it deals with that aspect in its consideration of standard G4.

Next, the Authority turns to Privacy Principle (v). While the broadcasts named and identified the complainant’s son, the Authority is unable to find any breach of the principle because the broadcasts related to news and current affairs reporting and detailed matters of public interest. Those are matters which are excluded from the protection of privacy provided for in that privacy principle.

In concluding, the Authority briefly refers to Privacy Principle (vi) to which TV3 alluded in its consideration of this aspect of the complaint. This principle provides that the discussion of a matter of legitimate concern or interest to the public is a defence to a claim for privacy. In this instance, the Authority is in no doubt that the principle is applicable, for the claims concerned the role of Mr Wallace’s son in executing his duties as a public official. The Authority finds that the inquiry into, and reporting on, the matter was in the public interest.

In all the circumstances, the Authority declines to uphold the complaints that the privacy of Mr Wallace’s son was invaded by the broadcasts.

The Authority’s Findings – Standards

The Authority turns first to the complaint that the action taken by the broadcaster in upholding the standard G1 complaint was insufficient. Mr Wallace had complained that the broadcaster’s description of the couple’s relationship as "One inappropriate jail liaison" was incorrect, unbalanced and unfair. TV3 had agreed that the description was ambiguous but, it said, it had corrected the ambiguity by clarifying the description it used in its subsequent news bulletin. Because fairness was restored by the time viewers watched the subsequent bulletin, TV3 said, it declined to uphold the standard G6 complaint. Its correction accorded with the requirement of standard G21 to correct errors of fact at the earliest opportunity, TV3 asserted. Mr Wallace referred to the Authority only the action taken aspect of the complaint.

The Authority notes that TV3 had upheld the complaint that standard G1 had been breached by the description used in the headline. The broadcaster then corrected the ambiguous description in the subsequent news bulletin, without pointing to its initial inaccuracy. In the Authority’s view, any other correction by the broadcaster would have served to draw attention to the earlier ambiguity, rather than mitigating its effects. In the particular circumstances, the Authority considers the action taken by TV3 was sufficient to satisfy the requirements of standard G21.

Each of the items complained about included footage of the complainant’s son walking in a street. Two of the items included footage of the reporter questioning the son.

This aspect of the complaint raises the issue of door-stepping. The Authority’s approach to door-stepping was set out in Decision No: 29-30/94 (9 May 1994), when the Authority wrote in regard to a complaint from the person who managed the organisation under investigation, who was approached by a reporter and crew as he collected the newspaper from the letter box early in the morning:

It was apparent from TVNZ’s comments that the "door-step" method is not one which is used without great care. Such caution is essential for a number of reasons not least the fact that most people have little experience in and no training for appearing on television. They can be at a distinct disadvantage when appearing on television even with prior knowledge and consent let alone when opening a door to find themselves confronted by a camera and reporter. Their inexperience and disadvantage can be contrasted with that of television journalists who not only have the skills but also the information and total preparedness to confront the person whom they wish to interview. An interview in which an interviewee is being asked to respond to accusations or allegations of other serious misbehaviour is, moreover, usually an adversarial situation. If the element of surprise is combined with unequal television experience and accusations of irresponsible or illegal behaviour, the situation becomes one where the unevenness between the parties is very marked. In other words, it is a situation which is potentially most unfair and intimidating to the interviewee. It is also a situation to which standard G4 of the Television Code is applicable.

The Authority is concerned not only about the degree of unfairness potentially involved but also the possibility that a broadcaster might decide to use this method for the expected visual impact of the confrontation which is likely to ensue, rather than its use as a source of considered information and constructive comment.

While "door-stepping" will not always be in breach of the Code, the Authority emphasises that it is a method which should not normally be used unless every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted.

The Authority is not convinced that alternative legitimate avenues were sought here.

On this occasion, the complainant’s son claimed that he had been accosted in a public place by a reporter and a cameraperson who, he alleged, proceeded to corner him against the doorway and to shout at him. He said he asked the crew to leave him alone, but they persisted with the filming and followed him. At some point, he stated, he was asked if he had had an affair with a prison inmate. He declined to answer and said that he was followed back to his office by the crew. The complainant’s son maintained that, at no time prior to this incident, had he been asked for an interview or warned of the allegations to be made. In summary, the complainant’s son wrote:

"From my perspective it was clear the door-stepping material was sought in an intrusive manner on two separate occasions, while I was going about my private business, to portray a certain angle. At no time prior to this material being filmed was any attempt made by 20/20 to request an interview or put the allegations to me.

After the doorstep material had been filmed a last minute attempt was made by 20/20 to obtain an interview. There was a total unwillingness on their part to outline the specific allegations being made against me or the basis for any such allegations. In the absence of any such information an interview was not possible. At no time were there any other options discussed.

TV3 have stated in their letter in reference to me:
            "He instead elected to flatly deny the allegations."

This is absolutely true. I denied the allegation of an affair with an ex-inmate prior to the programme because it was untrue. I only denied the allegation as it had been put to me. At this stage it was the only vague allegation I was aware of. The subsequent more specific allegations were indeed flatly denied after the programme, because they too were malicious and untrue. I was not aware of these more serious allegations until the programme screened. The only allegation I was vaguely aware of was [the reporter’s] question shouted at me abusively in a public street the day before."

In its first report to the Authority on the door-stepping issue, TV3 stated:

"1. 20/20 indeed had attempted to set up a meeting with Mr Tony Wallace before the ‘doorstep’ interview, in the week before the story was broadcast, but was advised by his boss at the Department of Corrections, Alison Welch, that she would handle the matter. On this understanding, no further attempt was made to contact Mr Wallace before the ‘doorstep’interview.

2. Subsequent to the ‘doorstep’ interview, 20/20 further attempted to contact Mr Wallace through the Department of Corrections to offer him the opportunity to appear on the programme. This offer was declined. …

Mr Wallace’s response to the ‘doorstep’ was to enlist the help of his lawyer. He and the lawyer were then filmed as they walked along The Terrace. Neither Mr Wallace nor his lawyer indicated during this encounter that they wished to be interviewed or that Mr Wallace wanted to put his side of the story."

In its second report to the Authority, TV3 reported that Ms Alison Welch of the Department of Corrections was asked specifically on the Saturday morning before the broadcast whether any of her staff had been disciplined for having an affair with an inmate. She telephoned back, TV3 added, to advise that none of her staff had ever had such a relationship.

In reaching a decision on the alleged unfairness of the door-stepping incident, the Authority notes that Ms Welch, Mr Tony Wallace’s manager, had agreed to an interview about the proposed 20/20 item before the door-stepping incident occurred, provided she was informed of the issues to be discussed. TV3 did not avail itself of this opportunity until the day before the broadcast of the item. It had by then elected to confront the complainant’s son in a public place and to surprise him with the allegations.

TV3 in its second response argued that its actions were justified by the answers given by Ms Welch on that Saturday morning. In the Authority’s view, that is not so for the following reasons. First, Mr Wallace was not named or identified in the approach which was made by the broadcaster to his manager.

Secondly, TV3 failed at this time to make a distinction between inmates and former inmates. The question, as reported by TV3 and put to Ms Welch, asked "whether any of her staff had ever been disciplined for having an affair with an inmate?" Mr Wallace was in fact accused of involvement with a former inmate, a highly pertinent distinction which TV3 has not addressed in its assessment of this complaint.

Thirdly, the question posed by the broadcaster was wide enough to be construed as an inquiry about a disciplinary process. In the Authority’s view, the question asked needed to be specific if the approach was to have any validity.

The type of approach made to Mr Wallace, known in the business as "door-stepping", can lead to unfairness. The Authority is satisfied that occurred here. There was an element of ambush to the filming, and the persistence of the crew in pursuing their subject through the street bordered on harassment.

These factors, combined with the fact that there was a suitably informed departmental spokesperson available, leads the Authority to conclude that the door-step approach targeting the complainant’s son was unfair and in breach of standard G4. The Authority is reinforced in its decision by noting that the footage screened - as is often the case with material obtained in this way – had the effect of presenting the complainant’s son in a negative light. While this material was undoubtedly visually effective television, it was obtained in a way which contravened standard G4.

TV3 responded that the allegations made against Mr Wallace’s son were serious and there was a legitimate public interest in them. It emphasised that the complainant’s son had had the option to agree to a formal interview to put his views "thereby negating the use of the ‘doorstop’ material. … He instead elected to flatly deny the allegations."

The Authority has already upheld the public interest point when assessing the privacy matter. However, the end does not always justify the means. Here, notwithstanding the public interest, it finds that the way in which the programme makers went about their business, breached the standard.

The second aspect of standard G4 to be dealt with by the Authority is whether the way in which the woman was depicted, and her allegations, contributed to a breach of the standard in that Mr Wallace’s son was not accorded equal protection of identity. Mr Wallace pointed out that in all three broadcasts, the woman’s identity was concealed while his son was continuously identified and named. That, he wrote, was unbalanced and unfair.

In considering this aspect of the complaint, the Authority notes that the gravamen of the complaint is Mr Wallace’s contention that the woman and Mr Wallace’s son were equal participants in the alleged relationship. In those circumstances, Mr Wallace evidently concluded, it was unfair to pixilate the woman’s face and hide her identity, while disclosing his son’s name and identity.

The Authority notes that the woman was a former prison inmate, while Mr Wallace’s son was an official of the Department of Corrections, with the responsibilities of a public servant. In particular, he was bound by a code of conduct not to have relationships with inmates or former inmates. In the Authority’s view, a distinction can be made between the parties on account of their different levels of public accountability. Given their different degrees of responsibility, the Authority is unable to uphold this aspect of the standard G4 complaint.

As for the aspect of Mr Wallace’s complaint that the broadcasts were inaccurate and unbalanced in reporting that his son had passed on information, the Authority notes that the broadcast in which this issue was referred to, in fact reported that its employee had been cleared of this accusation. Accordingly, that aspect of the complaint is not upheld.

For the reasons set forth above, the Authority upholds the aspect of the complaints relating to the approaches to the complainant’s son by 20/20 as a breach of standard G4 of the Television Code of Broadcasting Practice. It declines to uphold any other aspects of the complaints about the broadcast by TV3 Network Services Ltd of the items on 11 October, 10 November and 15 November 1998.

Having upheld a complaint, the Authority may make orders under s.13(1) and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on the question of penalty with respect to the breach of standard G4, and it has taken those submissions into account. While the Authority considers the aspect which was upheld – door-stepping – to be a serious matter, it is only one of a range of issues raised by the complaints. No other aspects were upheld and, in the particular circumstances, the Authority is of the view that an order would not be appropriate.

The Authority does consider however that an apology from the broadcaster to Mr Tony Wallace, as suggested in part by the complainant, would be appropriate.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
17 June 1999

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

1. Jim Wallace’s First Standards Complaint to TV3 Network Services Limited
    – 6 November 1998

2. Mr Wallace’s First Privacy Complaint to the Broadcasting Standards Authority
    – 6 November 1998

3. Mr Wallace’s Second Standards Complaint to TV3 – 11 November 1998

4. Mr Wallace’s Second Privacy Complaint to the Authority – 11 November 1998

5. Mr Wallace’s Third Standards Complaint to TV3, forwarded via the Authority
    – 16 November 1998

6. Mr Wallace’s Third Privacy Complaint to the Authority – 16 November 1998

7. TV3’s Response to the First and Third Standards and Privacy Complaints
    – 8 December 1998

8. TV3’s Response to the Second Standards and Privacy Complaints – 15 December 1998

9. Mr Wallace’s Referral of the Standards Complaints to the Broadcasting Standards 
    Authority – 21 December 1998

10. TV3’s Response to all Complaints to the Authority – 26 January 1999

11. Mr Wallace’s Response to the Authority on the door-stepping aspect of the Complaint
     (enclosing a letter from his son) – 17 March 1999

12. TV3’s First Response to the Authority on the same issue – 19 March 1999

13. Mr Wallace’s Final Comment – 24 March 1999

14. TV3’s Second Response to the Authority on the issue of door-stepping – 13 April 1999

15. Mr Wallace’s Further Comment – 22 April 1999

16. Mr Wallace’s Submissions on Penalty – 25 May 1999

17. TV3’s Submissions on Penalty – 31 May 1999

18. Mr Wallace’s Letter to the Authority – 1 June 1999